Saturday, July 26, 2008


The NBA's Seattle Supersonics have moved to Oklahoma City and will play there from now on. The team's new name is not yet known. However, the NBA filed the applications for six different trademarks with the U.S. Patent and Trademark Office. Those names include Barons, Bison, Energy, Marshalls, Thunder and Wind.

What does this mean?

Apart from the name being chosen from one of these selections, not much. Filing a trademark application at this point in time only means that the NBA has a bona fide intent to use the mark in interstate commerce. This does not mean that the NBA is using the mark and, in fact, the NBA is unable to own a registered trademark until the mark is used in interstate commerce (and can provide proof). As you can guess, in trademark law parlance, this is called an intent-to-use trademark application or a 1(b) application, after the applicable section of law.

What makes this a little difficult to swallow is that the NBA does NOT have a bona fide intent to use five of the six trademark applications. Only one of those names will be chosen.

The U.S. Patent and Trademark Office does not review intent-to-use trademark applications for their good faith. Still, I am troubled because the attorneys for the NBA know that only one mark will be used and five of those six will not be used.

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Tuesday, July 22, 2008

Thumbs Down

Does it seems as if fewer movies have received a the approval of two movie critics as "Two thumbs up"? That is because the phrase has not been in use since late 2007.

As many people know by now, At the Movies with Ebert and Roeper will be ending its television run, which started with the now-famous pairing of Gene Siskel and Roger Ebert in 1975. The pair of movie critics (now Roger Ebert and Richard Roeper) will most likely start their own venture in television.

As Ebert's statement on his website says, "We made television history, and established the trademarked catch-phrase 'Two thumbs up.' The trademark still belongs to me and Marlene Iglitzen, Gene's widow, and the thumbs will return."

Quite true. The trademark for "Two thumbs up" is owned by The Ebert Company, Ltd. and Siskel Productions, Ltd. How smart. Knowing of our own mortality, the two friends started shell companies (which is what they really are) in order to keep the trademark going, knowing its importance in the entertainment industry, in order to continue it.

There were varying reports, with Disney (the producer of the show) saying that Ebert wasn't allowing Disney to use the trademark while negotations on Ebert's role continuing and Ebert saying that Disney pulled the use of the mark itself.

Either way, I wanted to point out the intelligence of having two corporations own the trademark - as corporations can theoretically live on forever, while people (we know) cannot and I wanted to point out that, all too often, reports misidentify simple points of intellectual property. Looking back at the USA Today story, the report says that Ebert owns the "copyright" on "Two thumbs up," which is exactly what I heard this morning on the news - and my ears perked up.

Getting back to basics, it's quite simple. The trademark refers to some kind of goods or services in a business (in this case, "Two thumbs up" refers to, quite simply, "television programs and appearances in the field of motion picture critiques"). A copyright is a right in a work of art (usually) that prevents anyone but the creator from making copies.


An article in the Montreal Gazette - the main English-language newspaper in Montreal - discusses how the United States sees Canada lax in intellectual property protection. I found it to be a short, but interesting read.

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